Medical Board’s amendment, lack of quorum leaves telemedicine rule in limbo

The process of Arkansas officials adopting rules for telemedicine, which has been ongoing for more than a year, did not get any shorter after a joint Public Health, Welfare and Labor Committee failed to give its blessing Monday (July 18) to two rules that had been approved by the State Medical Board.

One of the rules, Regulation 2.8, would have expanded the requirements for establishing a doctor-patient relationship and did not generate much controversy.

The other rule, Regulation 38, would have defined “store and forward technology” – a method of digitally passing information from one entity to another – as not involving a patient completing a medical record online and forwarding it to a physician using a vendor. It was more controversial because some said the State Medical Board had overstepped its bounds in amending the rule.

Legislators initially voted against a motion to approve both rules and then separated the two so only Regulation 2.8, the one dealing with the definition of the doctor-patient relationship, was considered. In a roll call vote, it gained a majority of votes among House members, 11-4, and senators, 3-1, but there were not enough senators to have a quorum.

The rules had been sent to the joint committee July 12 by the Arkansas Legislative Council’s Administrative Rules and Regulations Subcommittee. It now returns to that subcommittee for further action.

The broader debate centers around the state’s expansion of telemedicine services, where physicians treat patients remotely using technology. In 2014, the state Medical Board made it more difficult for certain types of telemedicine companies to operate. In 2015, the Legislature passed a law giving the State Medical Board the authority to expand the definition of “doctor-patient relationship,” thereby expanding telemedicine.

The Medical Board in June said physicians can treat patients they’ve never met in person so long as they establish a relationship using two-way, real-time audiovisual communication. However, that relationship must first be established while the patient is at a licensed medical facility of any kind that would connect him or her to the distant provider. Moreover, that initial remote meeting must provide information that is as good as would occur in a face-to-face meeting. The distance provider must be licensed in Arkansas.

Several vendors, the largest being Teladoc, offer services where patients can be treated remotely for minor ailments. Under Teladoc’s model, patients contact doctors they have never met in person by using audiovisual devices or a telephone. The company says Arkansas’ rules make it the only state where it’s unable to operate. A number of Arkansas entities, including Bentonville-based America’s Car Mart and the Arkansas Trucking Association, want to offer those kinds of services to employees and members.

The controversy Monday arose over the State Medical Board’s changing of an amendment to Rule 38, which deals with store and forward. Originally, a State Medical Board advisory committee had recommended the regulation include a sentence saying the committee did not believe a patient completing an online medical history qualifies as “store and forward.” The Board changed the wording at its June meeting by removing the reference to the advisory committee.

Bradley Phillips, a lobbyist for Teladoc, said the Medical Board did not make the change known to the public until after it had already voted for it. He said the wording changed its meaning from an opinion to a rule. Representatives of Teladoc and 15 businesses and entities expressed their opposition to that change. Several legislators, including Rep. Dan Sullivan, R-Jonesboro; Sen. John Cooper, R-Jonesboro; and Rep. John Payton, R-Wilburn, said the wording qualifies as a substantial change enacted without proper public input.

Kevin O’Dwyer, an attorney for the Medical Board, testified that it was not a substantial change. He said he had received an email from Gov. Asa Hutchinson’s deputy legal counsel saying the change was not substantive. Jessica Sutton, an administrative rules counsel with the Bureau of Legislative Research, said she didn’t believe the change was “egregious.” David Wroten with the Arkansas Medical Society said the Medical Board saw it as a clarification, and that it does not change the intent of the law.

Afterward, Drew Navikas, an attorney with Cleary Gottlieb, a D.C. law firm representing Teladoc, said the Medical Board’s rule narrows the statutory definition of store and forward. With or without it, Teladoc cannot operate in Arkansas using its model. But Navikas said store and forward is a common term defined by statute and shouldn’t be changed by the Medical Board.

Claudia Tucker, a Teladoc vice president of government affairs, said the board’s action could set a precedent for the future.

“We don’t know what other definitions could be changed. Words matter,” she said.

Rep. Deborah Ferguson, D-West Memphis, the committee’s vice chair who opposes the Teladoc model, said Teladoc is trying to ensure it can operate using its own model.

“My concern is they’re just trying to delay the implementation of the telemedicine bill in any way possible. … The real issue is that they don’t like the telemedicine rules and regs. They want Teladoc to be able to function with a phone call, and that’s really the problem,” she said.

Wroten said the Medical Society’s views on telemedicine are evolving, but it is firmly against initiating relationships using the telephone.

“We’re not going to go back on that,” he said. “There’s no way in the world that a doctor-patient relationship should be created over the telephone without seeing the patient some way somehow.”